COVID-19 MPLG Updates: Unemployment Benefits & Immigration Status

With more and more people either losing their jobs, being temporarily laid off, or furloughed, unemployment benefits may be a critical component of economic security. This update analyzes eligibility for certain foreign nationals.

We conclude that Lawful Permanent Residents can seek unemployment benefits without harming their immigration status or implicating public charge rules. However, nonimmigrant workers whose employment must first be authorized (H-1B, H-1B1, E-1/E-2, E-3, L-1, O-1, TN) may not be eligible. The dependent spouses of those nonimmigrant workers who have work authorization (H-4 and L-2) should be eligible for unemployment benefits while they are in status.

I.  Legal Framework

A.  Eligibility for Unemployment Benefits

In order to access unemployment benefits, an individual must certify that they are available to work and ready and willing to accept work immediately. This does not require someone to accept any work, but instead that the person was willing to accept work that matches their occupational skills and/or educational background.

1. 1. U.S. Department of Labor (DOL) Regulations re Foreign Nationals

The U.S. Department of Labor (DOL) regulations describe when a foreign national is “available for work at 20 CFR § 604.5, which states in relevant part:

(f) Alien status. To be considered available for work in the United States for a week, the alien must be legally authorized to work that week in the United States by the appropriate agency of the United States government. In determining whether an alien is legally authorized to work in the United States, the State must follow the requirements of section 1137(d) of the SSA (42 U.S.C. 1320b-7(d)), which relate to verification of and determination of an alien’s status.

2. California Employment Development Department (EDD)

In California, the Employment Development Department provides this guidance:

I’m not a US citizen. Can I collect UI benefits?

To collect UI benefits, you must show that you were in satisfactory immigration status and authorized to work in the United States when earning the wages you used to establish your claim.

You must also give proof that you are currently in satisfactory immigration status, and are authorized to work each week that you claim benefits.

Note: The EDD verifies immigration status and work authorization through the Department of Homeland Security.

 

B.  Unemployment Benefits Does Not Implicate Public Charge Considerations

Receipt of unemployment benefits should not be a negative factor under the new public charge rule. According to the comments in the final rule at 84 FR 41390:

According to the rule, DHS will not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, postsecondary education, or unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person’s employment and specific tax deductions.

Thus, unemployment benefits can be accessed if necessary, without implicating the public charge rule for future immigration benefits.

II.  Lawful Permanent Residents

Lawful Permanents or “Green Card” holders can access their unemployment benefits if they can certify that they are available to work. They should not have any difficulty in establishing their immigration status since their permanent resident status is not tied to employment or otherwise as may be the case of nonimmigrants.

III.  Temporary (Nonimmigrant) Workers and Dependent (H-1B, H-1B1, E-1/E-2, E-3, L-1, O-1, TN and Dependents)

Below, we detail the issues surrounding unemployment benefits for temporary nonimmigrant workers and access to those benefits for their dependents with valid work authorization.

A.  Temporary Nonimmigrant Workers: Grace Period for Status Following Work Cessation

Certain non-immigrant workers (H-1B, H-1B1, E-1/E-2, E-3, L-1, O-1, TN) who face a cessation of employment have a discretionary grace period of up to 60 days[1] to find another job or change visa status.^[2]

This grace period allows a laid off nonimmigrant worker to remain in status post-employment cessation.  and thereby meet at least the first requirement of satisfactory immigration status for unemployment benefits during the grace period.

B.  Authorized to Work

1. 1. Temporary Non-Immigrant Workers (H-1B, H-1B1, E-1/E-2, E-3, L-1, O-1, TN)

To access unemployment benefits, it is  unclear as to whether a nonimmigrant worker could properly certify that they are “authorized to work” when filing for the benefit.

As discussed above, temporary non-immigrant workers (H-1B, H-1B1, E-1/E-2, E-3, L-1, O-1, TN) hold status that is tied to a specific employer. Because of this, it is not clear whether these individuals can sustain the claim that they are “authorized to work” since such non-immigrant worker must first gain work authorization from DHS.

This is likely the case even under the AC21 portability rules which allow an H-1B worker to start working for a new employer once an H-1B petition is filed as opposed to waiting until it is approved by USCIS.

As of this writing, the DOL has not further clarified whether authorized to work for unemployment benefits would encompass H-1B workers who are entitled to AC21 portability and can work upon USCIS’s receipt of the petitioning employer’s H-1B petition.

Thus, while a temporary non-immigrant worker may be tempted to seek unemployment benefits under these facts, they may not meet the state’s requirements and be refused. In cases in which they are granted benefits, they may in the future owe this money back if audited.

1. 2. Dependents with Work Authorization (H-4, L-2

For Dependents who are in valid status and have work authorization pursuant to a valid employment authorization document (EAD), they are able to establish that they are authorized to work and thus eligible for unemployment benefits. This is because their EAD is not tied to a specific employer.

Please note though that a Dependent’s status is contingent upon the status of the principal non-immigrant worker (i.e., H-1B L-1, E-3, etc.), If the principal non-immigrant loses their job, the Dependent may only be able to seek unemployment for the duration of the non-immigrant worker’s grace period.

[1] Or until the end of the non-immigrant worker’s authorized validity period, whichever is shorter. See https://www.govinfo.gov/content/pkg/FR-2016-11-18/pdf/2016-27540.pdf)

[2] See https://www.govinfo.gov/content/pkg/FR-2016-11-18/pdf/2016-27540.pdf) and 8 CFR 214.1

 

Disclaimer:  This is a general advisory and not the basis for specific legal advice. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Consultation:  Please contact MPLG today to schedule a consultation for your individual concerns.